Q. Is it rape if I voluntarily drink too much or take drugs?
A. Consent can only be given by someone who acts freely, voluntarily, and
with knowledge of the nature of the act involved. If you are unconscious,
you are incapable of giving consent. Whether you chose to drink too much or
someone spiked your drink, it is rape.
(Note: Drinking or taking drugs to the point of passing out is not healthy
or normal behavior. Seeking professional help is recommended.)
Q. Is it rape if I did not fight him off or try to escape?
A. Surviving the assault should be your primary concern. Everything else is
That said, perpetrators in non-stranger assaults often raise the defense of
"reasonable mistaken belief" - that since "she didn't scratch my eye out, I
was reasonable in mistakenly believing that she wanted sex."
While the lack of a physical defense may raise eyebrows among family and
friends, and may give prosecutors reason to doubt success at trial, you need
only verbally say "no" to withhold consent.
Q. If I asked my attacker to wear a condom is that considered consent?
A. In many states, you may couple your lack of consent with a request that
your attacker use a condom without giving consent to the act.
In general, one must examine the "totality of circumstances," not merely
rely on the use of physical force (or the lack thereof), to demonstrate a
lack of consent.
Q. Can a minor lawfully consent to having sex with another minor?
A. Unless the minor is married to the other person, a minor cannot consent
under the law. While the minors may have willfully and without duress
elected to engage in the conduct, each is still too young to give legal
This is true even if they are the same age or within months of reaching the
age of majority.
The law notwithstanding, sex between minors is rarely prosecuted unless
there is a large age difference between them or one of the participants is
particularly young. Penalties vary by state and often depend on the ages of
Q. Can a minor consent to having sex with an adult?
A. No. Under the law, a minor cannot legally give consent, no matter how
willing a participant he or she is. Sex between an adult and a minor is
considered statutory rape and is frequently prosecuted. Note, though, that
"minor" doesn't always mean "under 18." Each state sets its own age of
consent for sexual activity, and in many states anyone 16 or older is
considered an adult for sexual purposes.
RAINNlaw is written by Mark A. Kelegian, Esq. of Kelegian White & Reed LLP,
with offices throughout California. Mr. Kelegian serves as chairman of
RAINNšs National Legal Advisory Board. For further advice on these or other
issues, please contact Mr. Kelegian toll free at 866.4.COURAGE (426.8724);
via facsimile at 949.553.1013; or via email at [email protected].
This is not legal advice. Laws vary by state and the following may not be
applicable in your state. You should consult with an attorney in your state.
PAST RAINN NEWS COLUMNS:
The Rape, Abuse & Incest National Network is the nation's largest
anti-sexual assault organization. With a national perspective and broad
reach, RAINN is a trusted resource for media, policymakers and the public.
Additionally, RAINN operates the National Sexual Assault Hotline at
1.800.656.HOPE. Comprised of more than 1,000 local affiliates, the hotline
has helped more than half a million victims of sexual assault since 1994.
For more information, please visit the RAINN website at www.rainn.org